Michigan Bar Journal
32
June 2010
Alternative Dispute Resolution
Mediator Listening Skills
for All Attorneys
By Robert E. Lee Wright
Are you a good listener? Well of course you are, but does anyone
else realize it? How often do your clients thank you for being a
great listener? Would you like to hear more of those compliments?
Before you decide, realize that clients who feel heard are more
likely to return to you for legal services and recommend you to
their friends for their legal needs. Chances are we can all improve
our listening skills. Read on for five easy tips to improve your effectiveness as a communicator.
sage the speaker wishes to convey. Dr. Albert Mehrabian’s 1967
studies proved that only 7 percent of our emotional messages are
conveyed by the words we use!1 The other 93 percent is supplied
by our tone of voice, body language, and facial expressions, also
known as the three Vs: verbal, vocal, and visual. Importantly, if
there is a conflict between what is said (verbal) and the tone of
voice (vocal) or body language (visual), the listener will rely on
the last two Vs to determine the true message.2
Listening Skills Used by Mediators
Listen Without Judging
Good mediators realize the importance and value of listening
during the mediation process. Mediators seek to promote greater
understanding of positions, needs, and interests among all mediation participants by actively listening. By using mediator listening skills, all lawyers can develop a greater understanding of their
clients and witnesses.
When we judge others, it tends to shut down our ability to
take in all that they have to say. Listening to others without judging whether what they are saying is right or wrong allows us to
hear them clearly and, when combined with other techniques,
allows those speaking to decide whether their own words have
validity. Suspend disbelief and try to imagine what others are
feeling as they speak.
Listen to the Whole Person
Listen with your eyes as well as your ears. Don’t just rely on
the words a speaker uses. Tone of voice, hand gestures, eye movements, and facial expressions are all important parts of the mes-
Fast Facts
• Mediators use listening skills to improve communication in mediation.
• Anyone can improve listening skills by:
– Listening with your eyes as well as your ears.
– Listening without judging.
– Listening reflectively to complete the communication loop between
speaker and listener.
– Asking open-ended questions.
– Effectively using silence.
Listen Reflectively: Repeat What You Hear
Perhaps the most powerful tool in the mediator’s tool box is
reflective listening. Reflective listening is paraphrasing (but not
June 2010
Michigan Bar Journal
33
Reflective listening is paraphrasing (but not parroting) what others say and repeating
it back to them. The goal is not only to make sure you understand what they are
saying but, more importantly, to let them know you understand what they are saying.
parroting) what others say and repeating it back to them. The goal
is not only to make sure you understand what they are saying
but, more importantly, to let them know you understand what
they are saying. It is especially useful to do this when receiving
an important piece of information.
Often, we assume we know what someone meant by the words
he or she used. However, our assumptions are occasionally wrong
and we miss what the speaker intended to convey. If we continue
listening with a false conception of what a speaker said earlier,
we may miss important aspects of the rest of the message as we
try to fit what is being said into the wrong context.
Think of building a house. To construct a house with a basement, the walls and floors of the basement are poured and inspected before construction of the framework can begin. Any
mistakes in the foundation that are overlooked could create a
problem later. Likewise, we inspect the framework before the
house is sheathed with siding, the rafters before the roof is nailed
down, the plumbing before the water is turned on, the wiring
before the power is switched on, and so on.
Paraphrasing a speaker’s message and repeating it back to him
or her at convenient intervals throughout the conversation keeps
us from building on a basic misunderstanding of what that person is saying. It also lets the speaker know we are really listening
by completing the “communication loop” from speaker to listener
and back to speaker (see diagram below).
As mediators, when we do not reflect back the content of a
speaker’s message, it often leads to uncertainty on the part of the
speaker regarding whether the correct message was received.
The speaker may communicate this uncertainty by repeating the
message as often as necessary until satisfied that he or she was
heard by the listener. When mediators hear someone repeating
the same message more than once, they will take the time to reflect the message back to the speaker, exploring its meaning and
any related emotions.
Reflective listening is not interpreting what you hear and making something more out of it. For instance, Jane says, “When I
turned onto Cedar Street, I saw a white BMW ram into the rear
end of a red Mercedes.” A good mediator would not say, “So you
saw the accident and it was the BMW driver’s fault?” Rather, the
mediator would say something like, “Turning onto Cedar Street,
you saw the BMW hit the back end of a red Mercedes. Is that accurate?” This technique will often stimulate additional comments
from the speaker. This is to be expected and encouraged. Continue to paraphrase any additional information offered by the
speaker until he or she acknowledges that you have all the necessary information.
THE COMMUNICATION LOOP
SPEAKER:
“Yes, that is exactly
what I saw!”
LISTENER:
“So you saw the doctor
nick the aorta with
the scalpel?”
SPEAKER:
“I saw the doctor
nick the aorta with
the scalpel.”
Michigan Bar Journal
34
June 2010
Alternative Dispute Resolution — Mediator Listening Skills for All Attorneys
When reflecting a message back to the speaker, you should
include any emotions the speaker is displaying. If you hear anger
rising in the speaker’s voice, you might say, “So you are saying
that X happened. I sense that in recounting it, you are feeling
some anger right now. Is that accurate?” If the speaker acknowledges the accuracy of your perception, you might follow up by
If a third person speaks up during the silence, thank him or
her for the contribution but point out that you are waiting for the
other individual to respond, and resume waiting in silence. (Also,
you may want to note that the third person may be uncomfortable with silence and use the same technique with that person at
a later point.)
Listen with your eyes as well as your ears.
Don’t just rely on the words a speaker
uses. Tone of voice, hand gestures,
eye movements, and facial expressions
are all important parts of the message
the speaker wishes to convey.
asking the speaker to explain why he or she is feeling angry. Clients are often surprised when mediators (or lawyers) ask them
about their feelings, but doing so builds trust because it conveys
the sense that the listener cares about them.
Ask Open-Ended Questions
Contrary to everything we were taught in law school, when listening to a client, ask open-ended questions—questions that don’t
suggest the answer or simply invite a yes-or-no response. Who,
what, where, when, and why are the key words in open-ended
questions. If you feel as if you are cross-examining a witness, you
are probably not asking open-ended questions. If you are genuinely
interested in hearing a client’s unfolding story with all the nuanced
details, chances are you are asking open-ended questions.
Asking open-ended questions is often difficult for litigators,
but with a little practice, it becomes much easier. Try using openended questions at home or in the office until you feel more
comfortable. You might even find that you are perceived as a better listener by your family.
Silence
The effective use of silence is often overlooked as a communication tool because it feels uncomfortable and doesn’t appear
as though the mediator is doing anything. However, when the
mediator asks an individual a question inviting a serious and considered response, an effective technique to facilitate concentration is to pause and wait for the individual to fill the void. Watch
the clock and let a minimum of one minute go by without saying
a word; wait three minutes if the individual is flipping through
papers looking for something. Eventually, he or she will realize
that you are still waiting for a response and say something.
Conclusion
By practicing these basic listening skills, anyone can improve
his or her ability to communicate with clients, colleagues, and
even friends and family. Improved communication leads to deeper
levels of trust in the listener, which, in turn, leads to more information being shared. With more information, we are better able
to serve our clients. Better outcomes mean greater client satisfaction, which generates referrals and more business.
So go ahead, borrow these skills from mediators. We don’t mind! ■
Robert Wright is a facilitative mediator for commercial and divorce disputes in the Grand Rapids
office of Miller, Canfield, Paddock & Stone, PLC.
Holding a master’s degree in psychology, he has more
than 1,000 hours of mediation training, including 40 hours at Harvard. Secretary of the ADR
Section Council of the State Bar of Michigan, he
serves on ABA and SCAO ADR committees. Contact Mr. Wright at (616) 776-6334 or [email protected].
FOOTNOTES
1. Mehrabian & Weiner, Decoding of inconsistent communications, J Personality Soc
Psychol 6 (1), 109–114 (1967); see also Mehrabian & Ferris, Inference of attitudes
from nonverbal communication in two channels, J Consulting Psychol 31 (3),
248–252 (1967).
2. A new field of study dealing with “micro expressions” has developed around the
third V (visual). Micro expressions are extremely brief, unconscious facial expressions
that we all exhibit in reaction to stimuli. In fact, they are universal. Malcolm Gladwell
mentions the work of Prof. Paul Eckman and the importance of micro expressions
in his bestselling book, Blink (Little, Brown & Co, 2005). For a two-minute video of
Prof. Eckman demonstrating the use of micro expressions as a lie detector in a
televised trial, visit <http://www.youtube.com/watch?v=EXm6YbXxSYk> (accessed
May 3, 2010). The TV series Lie to Me is based on the work of Prof. Eckman.